Advisory Opinion No. 2009-2 Rhode Island Ethics Commission Advisory Opinion No. 2009-2 Re: Harriet Powell QUESTION PRESENTED: The Petitioner, a member of the North Kingstown Planning Commission, a municipal appointed position, requests an advisory opinion regarding whether she must recuse in matters in which the Planning Commission makes recommendations to the Town Council, given that her daughter is a new Town Council member. RESPONSE: It is the opinion of the Ethics Commission that the Petitioner, a member of the North Kingstown Planning Commission, a municipal appointed position, need not recuse in matters in which the Planning Commission makes recommendations to the Town Council, notwithstanding the fact that her daughter is a new Town Council member. The Petitioner is a member of the North Kingstown Planning Commission (“Planning Commission”). She states that a part of her duties as a Planning Commission member include periodically voting on recommendations to the North Kingstown Town Council (“Town Council”) concerning zone change and comprehensive plan change applications. The Petitioner advises that her daughter, Carol H. Hueston, was recently elected to the Town Council. She states that when Planning Commission recommendations are made to the Town Council, it is the attorney for the Planning Commission who presents the recommendation before the Council, and that she herself would not be appearing before the Council in those instances. She further represents that there are occasions when Planning Commission members voluntarily appear before the Council to provide input on matters that have not gone before the Planning Commission, but that this is informal and entirely voluntary and that in those instances, the members speak from the audience as members of the public. Given this set of facts, the Petitioner requests an advisory opinion as to whether she must recuse from her duties on the Planning Commission when that entity makes recommendations to the Town Council, given that her daughter is now a Town Council member. The Code of Ethics provides that the Petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if she has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. See R.I. Gen. Laws § 36-14-7(a). Furthermore, pursuant to R.I. Gen. Laws § 36-14-5(d), the Petitioner is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself or a family member. Additionally, Commission Regulation 36-14-5004(b)(1), states in pertinent part that “[n]o person subject to the Code of Ethics shall participate in any matter as part of his or her public duties if he or she has reason to believe or expect that any person within his or her family * * * is a party to or a participant in such matter . . . .” In the facts of this Petitioner’s request, there is nothing to indicate that any recommendation that the Planning Commission would make to the Town Council would have any financial impact on either the Petitioner or her daughter; thus, the prohibitions found at R.I. Gen. Laws §§ 36-14-5(a), 5(d) and 7(a) are not implicated by this Petitioner’s request. Furthermore, while Regulation 5004, subsection (b)(1), would require the Petitioner to recuse if her daughter appeared before the Planning Commission, it does not require her to recuse from voting to make a recommendation that will come before the Town Council. At the point in which the Planning Commission is voting to make a recommendation to the Town Council, no family member of the Petitioner is “a party or participant” in the matter, thus she need not inherently recuse from voting, barring additional facts that would implicate provisions of the Code. Furthermore, the Petitioner states that the recommendation that the Planning Commission makes is presented to the Town Council by the attorney for the Planning Commission, not by any Planning Commission member. Finally, the Petitioner is advised that this opinion solely addresses whether the Code of Ethics requires her recusal in matters in which the Planning Commission is making a recommendation to the Town Council, an agency in which her daughter is a member. It does not, and cannot, address whether any other statute, charter, ordinance, ruling or municipal policy prohibits such conduct. The Ethics Commission does not exercise jurisdiction over those other provisions of law and, therefore, is not empowered to issue advisory opinions addressing or interpreting their effect. Code Citations : § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) Commission Regulation 36-14-5004 Keywords : Nepotism Recusal